Citation Nr: 0832639
Decision Date: 09/23/08 Archive Date: 09/30/08
DOCKET NO. 04-39 792 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for residuals of a
facial injury.
2. Entitlement to service connection for bilateral hearing
loss.
3. Entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Counsel
INTRODUCTION
The veteran, who is the appellant, served on active duty from
January 1955 to January 1957.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision in September 2003 of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas.
In a decision in January 2007, the Board reopened the claims
of service connection for residuals of a facial injury and
for hearing loss, and remanded the claims, as well as the
claim of service connection for tinnitus, to the RO for
further evidentiary development. As the requested
development has been completed, no further action is
necessary to comply with the Board's remand directives.
Stegall v. West, 11 Vet. App. 268 (1998).
FINDINGS OF FACT
1. The veteran does not have residuals of a facial injury
suffered in service.
2. Bilateral hearing loss was not affirmatively shown to have
had onset during service; bilateral sensorineural hearing
loss was not manifested to a compensable degree within one
year from the date of separation from service; bilateral
hearing loss, first diagnosed after service beyond the one-
year presumptive period for bilateral sensorineural hearing
loss as a chronic disease, is unrelated to an injury,
disease, or event of service origin.
3. Tinnitus was not affirmatively shown to have had onset
during service, and tinnitus, first diagnosed after service,
is unrelated to an injury, disease, or event of service
origin.
CONCLUSIONS OF LAW
1. Chronic residuals of a facial injury were not incurred in
or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131,
5107 (West 2002); 38 C.F.R. § 3.303 (2007).
2. Bilateral hearing loss was not incurred in or aggravated
by active service, and service incurrence of bilateral
hearing loss as a chronic disease may not be presumed.
38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).
3. Tinnitus was not incurred in or aggravated by active
service. 38 U.S.C.A.
§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA amended VA's duties to notify and to assist a
claimant in developing information and evidence necessary to
substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38
C.F.R. § 3.159.
Duty to Notify
Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of
the information and evidence not of record that is necessary
to substantiate a claim, which information and evidence VA
will obtain, and which information and evidence the claimant
is expected to provide.
The VCAA notice requirements apply to all five elements of a
service connection claim. The five elements are: 1) veteran
status; 2) existence of a disability; (3) a connection
between the veteran's service and the disability; 4) degree
of disability; and 5) effective date of the disability.
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The VCAA notice must be provided to a claimant before the
initial unfavorable adjudication by the RO. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
The RO provided pre- and post- adjudication VCAA notice by
letters, dated in July 2003 and in March 2006. The veteran
was notified of the type of evidence needed to substantiate
the claims of service connection, namely, evidence of an
injury or disease or event, causing an injury or disease,
during service; evidence of current disability; evidence of a
relationship between the current disability and the injury or
disease or event, causing an injury or disease, during
service.
The veteran was also notified that VA would obtain service
records, VA records, and records of other Federal agencies
and that he could submit private medical records or authorize
VA to obtain private medical records on his behalf. The
notice included the provisions for the degree of disability
assignable and for the effective date of the claims.
As for content of the VCAA notice, the documents
substantially complied with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence); of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); and of Dingess v. Nicholson,
19 Vet. App. 473 (2006) (notice of the elements of the
claim).
To the extent that the VCAA notice was provided after the
initial adjudication, the timing of the notice did not comply
with the requirement that the notice must precede the
adjudication. The procedural defect was cured as after the
RO provided the content-complying VCAA notice, the claims of
service connection were readjudicated as evidenced by the
supplemental statement of the case, dated in April 2007.
Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing
error cured by adequate VCAA notice and subsequent
readjudication without resorting to prejudicial error
analysis.).
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate the claims. The veteran's service medical
records, except for records associated with his service in
the Reserves, are missing and presumed destroyed. The RO has
contacted the National Personnel Records Center (NPRC) on
several occasions to obtain any service medical records or
alternative sources of service medical information, including
from Ft. Bliss, Texas to no avail. In July 1994, the NPRC
indicated that no service medical records for the veteran
were available. Thereafter in August 1994, in August 2003,
and in November 2004, the NPRC explained that additional
detail was needed as to the veteran's unit in order to
conduct a search. In March 2005, NPRC reported that the unit
identified by the veteran did not exist in the NPRC's index.
The record shows that the veteran was notified NPRC's
responses. He was also notified in August 2005 of the
alternative sources of service information he could provide,
and the record shows that he has provided information from
such sources in the form of a statement from a service
comrade. In light of the above, efforts to obtain service
records for the veteran and the NPRC's response, the Board
finds that further efforts to obtain service medical records
for the veteran would be futile. 38 C.F.R. §38 U.S.C.A.
§ 5103A.
The veteran's representative asked the RO to obtain records
of the Social Security Administration (SSA). As the veteran
has not alleged that the SSA records are relevant, as the
representative argued only that there was the possibility
that the records could contain relevant records, as the
veteran is beyond the age of 72, as under 42 U.S.C. § 402,
his SSA disability award was converted to "old age"
benefits when he turned 65, and as the Social Security's
Document Retention Schedule requires the destruction of any
disability records when a beneficiary turns 72, there is no
duty to assist to obtain SSA records.
In March 2007, the veteran was afforded a VA examination with
a medical opinion.
As the veteran has not identified any additional evidence
pertinent to the claims and as there are no additional
records to obtain, the Board concludes that no further
assistance to the veteran in developing the facts pertinent
to the claims is required to comply with the duty to assist.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Principles of Service Connection
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Service connection is also possible for any disease initially
diagnosed after discharge from service when all of the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. §
3.303(d).
Where a veteran who served for ninety days or more develops
hearing loss of the sensorineural type to a degree of 10
percent or more within one year from separation from service,
service connection may be presumed to have been incurred in
service even though there is no evidence of such disease
during the period of service. 38 U.S.C.A. §§ 1112, 1137; 38
C.F.R. §§ 3.307, 3.309.
As the veteran's service treatment records are incomplete,
the Board has a heightened obligation to explain its findings
and conclusions and to consider carefully the benefit-of-the-
doubt standard of proof. O'Hare v. Derwinski,
1 Vet. App. 365, 367 (1991).
Residuals of a Facial Injury
The service treatment records are missing.
Photographs submitted by the veteran show him with a bandage
covering his forehead and nose during service.
Private and VA records from March 1994 to August 2004 contain
no complaint of residuals of a facial injury.
In a statement in June 2002, C.M. stated that he recalled
that the veteran sustained an injury of some type during
training, which required hospitalization.
In March 2005, the veteran testified that he injured his nose
during basic training, resulting in scars and sinus symptoms.
He explained that he struck his nose and forehead on the back
of a machine gun and underwent surgery to reconstruct his
nose. He stated that he experienced problems breathing after
the injury and that in 1968 he sought treatment was told that
the injury could result in recurrent infection.
On VA examination in March 2007, the veteran stated that
during service he fractured his nose and he sustained a
facial injury requiring sutures. He gave a long history of
recurrent sinus infections. Physical examination showed that
the veteran had a straight nasal septum. The nasal airway
was patent, and there was no significant nasal obstruction.
After a review of the record, the diagnosis was sinusitis.
The examiner expressed the opinion that the chronic sinusitis
was an inflammatory disease and it would be unlikely related
to the trauma in service. The examiner concluded that the
most likely etiology of the sinusitis was genetic and
environmental factors occurring subsequent to service and
that it was less likely than not that the sinusitis was
related to the injury in service.
Analysis
In light of the pictures submitted by the veteran and
statement of C.M., the Board finds that the veteran did
sustain a facial injury during service. Although the veteran
suffered an injury during service, this alone is not enough
to establish service connection. There must be a current
disability resulting from the injury during service. Chelte
v. Brown, 10 Vet. App. 268, 271 (1997).
And in the absence of service treatment records, service
connection may be established by a showing of continuity of
symptomatology.
After service, sinus symptoms were first documented in 2007.
The absence of documented symptoms from 1957 to 2007
interrupts continuity and is persuasive evidence against
continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v.
West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v.
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to
consider the veteran's entire medical history, including a
lengthy period of absence of complaints.). And while the
veteran has stated that he has symptoms since service and the
veteran is competent to describe his symptoms, the veteran is
not competent to associate his symptoms to the facial injury.
Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (Lay testimony
is not competent to prove the veteran had a particular
illness.). And the absence of evidence of continuity of
symptomatology outweighs the veteran's statements of
continuity.
As for service connection based on the initial documentation
of symptoms after service under 38 C.F.R. § 3.303(d),
residuals of a facial injury under case law have not been
found to be capable of lay observation and the veteran is not
competent to provide a medical nexus opinion between any
current symptoms and the injury in service.
Where, as here, there are questions of a medical diagnosis,
not capable of lay observation, and of medical nexus or
causation, competent medical evidence is required to
substantiate the claim.
Competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer a medical opinion. 38 C.F.R. § 3.159.
As a lay person, the veteran is not qualified through
education, training, and expertise to offer an opinion on a
medical diagnosis or on medical causation. For these reasons,
the Board rejects the veteran's statements as competent
evidence to substantiate that the current symptoms are
related to the in-service injury. Jandreau v. Nicholson, 492
F.3d 1372 (Fed. Cir. 2007).
As for competent evidence of a diagnosis or of medical
causation, on VA examination in 2007, the diagnosis was
sinusitis, and the examiner expressed the opinion that
chronic sinusitis was unlikely related to the trauma in
service and that the most likely etiology of the sinusitis
was genetic and environmental factors occurring subsequent to
service. The opinion opposes, rather than supports, the
claim, and the evidence is uncontroverted.
As the only medical opinion of record is unfavorable to the
claim, and as the Board may consider only independent medical
evidence to support its finding on the question of medical
causation, the preponderance of the evidence is against the
claims and the benefit-of-the-doubt standard of proof does
not apply. 38 U.S.C.A. § 5107(b).
Bilateral Hearing Loss and Tinnitus
The service treatment records are missing.
Private and VA records from March 1994 to August 2004 contain
no complaint of hearing loss or of tinnitus.
In July 2003, a private physician and a private audiologist
reported that the veteran was evaluated for hearing loss.
Also, the veteran complained of tinnitus. According to the
veteran, during service he worked in a rock quarry where he
was exposed daily to sounds of blasting and crushing rock.
The veteran stated that he was also exposed to small arms
fire and explosions during training. He indicated that after
service he drove an 18-wheeler.
The pertinent finding was noise-induced, sensorineural
hearing loss. The examiners concluded that it was more
likely than not that the veteran's hearing loss was due to
noise exposure during service.
In statements, the veteran asserted that his service medical
records would not show hearing loss or tinnitus and that his
hearing loss started after service.
In March 2005, the veteran testified that in service he was
exposed to loud noises associated with working in a rock
quarry running a bulldozer. He noted that he did not wear
hearing protection and that he did not seek treatment for
hearing loss during service. He stated that he first noticed
hearing loss and ringing in his ears after service in 1962.
The veteran stated that since service he had driven trucks
for a living. The veteran testified that he first sought
medical attention for hearing loss and tinnitus in 1968.
On VA examination in March 2007, the veteran stated the he
was exposed to noise from trucks and heavy equipment as a
construction worker prior to service, during service, and
since service until his retirement in 2002. He stated that
he first noticing hearing loss shortly after service with
progression since then. He stated that he had a long history
of tinnitus, but he was unsure as to the time of onset.
The examiner reviewed the medical record, including the
report of the private physician and the private audiologist.
The diagnoses were bilateral sensorineural hearing loss and
tinnitus. The examiner concluded that there was only a
remote possibility that hearing loss was incurred during
service and that tinnitus occurred after service. The
examiner stated that the most likely etiology would be a
combination of genetic and environmental factors that
occurred after service as the findings on physical
examination suggested a genetic origin for the hearing loss
that would have manifested after service. The examiner
specifically acknowledged that the veteran had noise exposure
in service, but also noted the non-military noise exposure
and the possibility of age-related changes.
The examiner also stated that he had consulted with two
audiologists, who both agreed that it was more likely than
not that the current hearing loss occurred after service.
The examiner concluded that it was less likely than not that
the current hearing loss and tinnitus were related to
acoustic trauma in service.
Analysis
Although the service treatment records are unavailable, the
veteran is competent to describe exposure to loud noises
during service, which is consistent with the circumstances
and conditions of his service. And in the absence of service
treatment records, service connection may be established by a
showing of continuity of symptomatology under 38 C.F.R.
§ 3.303(b).
After service, sensorineural hearing loss and tinnitus were
first documented in 2003. The absence of documented
complaints of hearing loss and tinnitus from 1957 to 2003
interrupts continuity and is persuasive evidence against
continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson
v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson
v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper
to consider the veteran's entire medical history, including a
lengthy period of absence of complaints.). And while the
veteran has stated that he has had hearing loss and tinnitus
since service, the Board finds the absence of medical
evidence of continuity of symptomatology outweighs the
veteran's statements of continuity.
Also the diagnosis of sensorineural hearing loss in 2003 is
well beyond the one-year presumptive period following
separation from service in 1957 for manifestation of
sensorineural hearing loss as a chronic disease under 38
U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.
As for service connection based on the initial documentation
of hearing loss and tinnitus after service under 38 C.F.R. §
3.303(d), although the veteran is competent to describe
symptoms of hearing loss and tinnitus and tinnitus under case
law has been found to be capable of lay observation, he is
not competent to provide a medical nexus opinion between his
current hearing loss and tinnitus and an injury, disease, or
event of service origin.
Where, as here, the determinative questions involve a medical
diagnosis of hearing loss, not capable of lay observation,
and medical causation of hearing loss and tinnitus, competent
medical evidence is required to substantiate the claims.
Competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer a medical opinion. 38 C.F.R. § 3.159.
As a lay person, the veteran is not qualified through
education, training, and expertise to offer an opinion on a
medical diagnosis of hearing loss or on medical causation of
either hearing loss or tinnitus. For these reasons, the
Board rejects the veteran's statements as competent evidence
to substantiate that current bilateral hearing loss and
tinnitus are related to an injury, disease, or event of
service origin. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.
Cir. 2007).
On the questions of a medical diagnosis of hearing loss and
of medical causation, the private physician and the private
audiologist expressed the opinion that the veteran's hearing
loss was more likely attributed to noise exposure during
service. A VA examiner expressed the opinion that hearing
loss was less likely than not that related to service.
As there are medical opinions in favor of and against the
veteran's claims, the Board must weigh the probative value of
each opinion. In so doing, greater weight may be placed on
one opinion over another depending on factors such as
reasoning employed and whether or not, and the extent to
which, the record was reviewed. Gabrielson v. Brown, 7 Vet.
App. 36, 40 (1994).
Also, the probative value of a medical opinion is generally
based on the scope of the examination or review, as well as
the relative merits of the analytical findings, and the
probative weight of a medical opinion may be reduced if the
physician fails to explain the basis for an opinion. Sklar
v. Brown, 5 Vet. App. 140 (1993). And among the factors for
assessing the probative value of a medical opinion are the
thoroughness and detail of the opinion. Prejean v. West, 13
Vet. App. 444, 448-9 (2000).
In weighing the probative value of the evidence in favor of
the claim, the opinion was provided without a review of the
entire record and without a rationale, addressing noise
exposure after service, age-related changes, or a genetic
origin.
The evidence against the claim consists of the opinion of the
VA examiner, who had reviewed the entire record. The
examiner stated that the most likely etiology would be a
combination of genetic and environmental factors that
occurred after service as the findings on physical
examination suggested a genetic origin for the hearing loss
that would have manifested after service. The examiner
specifically acknowledged that the veteran had noise exposure
in service, but also noted the non-military noise exposure,
the possibility of age-related changes, and a genetic origin.
Considering the relative merits of the analytical findings
and the details of the opinions, the Board places more weight
on the unfavorable medical opinion of the VA examiner because
of the thoroughness and detail of the opinion.
For these reasons, the Board places greater weight on the VA
medical opinion, which opposes rather than supports the
claim. As the preponderance of the evidence is against the
claim of service connection for bilateral hearing loss, the
benefit-of-the-doubt standard of proof does not apply. 38
U.S.C.A. § 5107(b).
As for the etiology of tinnitus, the private physician and
the private audiologist did not express an opinion. The VA
examiner expressed the opinion that tinnitus was less likely
than not that related to service. The opinion opposes,
rather than supports, the claim, and the evidence is
uncontroverted.
As the only medical opinion of record is unfavorable to the
claim, and as the Board may consider only independent medical
evidence to support its finding on the question of medical
causation, the preponderance of the evidence is against the
claim of service connection for tinnitus, and the benefit-of-
the-doubt standard of proof does not apply. 38 U.S.C.A.
§ 5107(b).
ORDER
Service connection for residuals of a facial injury is not
established, and the appeal is denied.
Service connection for bilateral hearing loss is not
established, and the appeal is denied.
Service connection for tinnitus is not established, and the
appeal is denied.
______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs